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Readers of Mark Shea's blog (Catholic and Enjoying It) are no doubt aware of the exchanges between himself and another blog, cheekily titled "The Coalition for Fog", consisting of Victor Morton and other erstwhile (now exiled?) participants in Shea's combox-debates on torture, military interrogations and the ethics of combat.

It steals a base to say that the Bush Administration wants to legalize torture because you first have to demonstrate that what they want to do is torture. I think it is a perfectly defensible and honorable position to claim that waterboarding, sleep deprivation etc. amount to torture. I don't think I agree with that view. But I certainly believe it is made in good faith. But the good faith ends when the same people then issue blanket and sweeping assertions that the people who want to legalize those actions are simply pro-torture. If the legalizers were simply pro-torture they would favor hot pokers, iron maidens, finger-nail-yanking and the rest. And the people supporting the use of waterboarding (in a tiny number of cases) aren't doing that. Not only do they think they're not in favor of torture but they objectively oppose things they consider to be torture. So even on the "anti-torture" crowds' own terms, the worst that could legitimately be said is that Bush wants to legalize "some torture" while banning most kinds of torture.

I understand this all sounds like hair-splitting, but part of the point of my column was that we don't have a good terminology to discuss this stuff clearly. So one is forced to take a razor to the clumsy language we do have.

As to why this debate over what constitutes "torture" is necessary at this time, one of Shea's commentators had this to say:

We had been doing fine without a precise exhaustive definition of torture for years now. Why do we all of a sudden need one now?"

Quite simply because advocates for both extremes have taken positions and no longer trust the other side to reasonably define it, and legal prosecution against guards/soldiers/etc. are now highly likely as a result.

For every CIA agent arguing for waterboarding to be allowed and not considered torture, there is a newspaper or human rights 'expert' claiming that longstanding interrogation tactics like solitary confinement or sleep deprevation should now be considered torture, and the guards/soldiers that authorize it should be prosecuted as war criminals.

Which leaves the only real option to negate both extremes is to try and define more precisely each act as acceptable or not. I support Mark's efforts to have tactics like waterboarding condemned and stopped. But I also support better definition of if/when tactics like sleep deprevation, etc. can be used so that guards/soliders can't be brought to trial for simply doing things they felt were acceptable.

Evan | 09.30.06 - 6:45 am | #

The problem, however, is that some Catholics are of the opinion that merely debating on what, exactly, constitutes torture is tantamount to moral capitulation to grave evil. Commenting on Shea's blog, ZippyCatholic opines:

"to "weigh" the things many people want to do to prisoners in order to get them to talk is itself to give up the moral ground to consequentialism

and elsewhere, more bluntly, concludes:

It isn't possible to exhaustively catalogue every possible inhuman despicable thing someone might want to do to prisoners. And the only people looking for a comprehensive catalogue are those looking for the loopholes.

It is pathetic, inhuman, vile, and most certainly un-Christian. A whole section of Hell is going to be paved with Republican skulls over this one; right next to the vast square paved with the skulls of pro-abort Democrats.

It seems to me that in order to condemn an action, you have to be in a position to recognize and define what it is. Especially when defining and implementing legal regulations pertaining to "the laws of war" and prisoner interrogation, I don't see how you can go about formulating such criteria without discussing the range of actions taken. And this seems to be the chief reason why some are criticizing Shea's approach -- not because they are rabid "torture apologists" enthusiastically chomping at the bit to bring out the "hot pokers and iron maidens."

But didn't the Church use Torture?

Before I address the focus of this post -- the events of this past week -- I want to address two arguments put forth by those advocating techniques which might be construed as torture. Both of these are easily dispatched, but as they have nevertheless appeared in many a combox discussion I'd like to respond.

The first strategy of some advocates of torture is to point out that the Church has, in the course of its history, used and legitimized techniques which might in our time be defined as torture. As one commentator on Rich Leonardi's Ten Reasons put it:

However, your argument isn't with me but rather with the Church that freely used torture for centuries. Somehow I suspect that the Popes and the councils of the Church during those centuries had an understanding of the Bible at least as keen as yours, but perhaps I am mistaken.

The Church responds to this unfortunate fact of history in its Catechism (Section #2298), which I think is a sufficient refutation of the proposal:

In times past, cruel practices were commonly used by legitimate governments to maintain law and order, often without protest from the Pastors of the Church, who themselves adopted in their own tribunals the prescriptions of Roman law concerning torture. Regrettable as these facts are, the Church always taught the duty of clemency and mercy. She forbade clerics to shed blood. In recent times it has become evident that these cruel practices were neither necessary for public order, nor in conformity with the legitimate rights of the human person. On the contrary, these practices led to ones even more degrading. It is necessary to work for their abolition. We must pray for the victims and their tormentors.

Does Torture Ever "Work"?

The second position I wanted to address is actually one used against torture -- the assertion that torture "never works," never produces reliable results. On the contrary, the use of techniques which would be categorized as torture has actually worked. Two popularly cited cases being the August 2006 breaking of a Pakistani Muslim terror-cell plotting to blow up flights out of Heathrow; a lesser-cited case is that of Oplan Bojinka, when Abdul Hakim Murad -- co-conspirator of 1993 World Trade Center bomber Ramzi Yousef -- who was caught by the Philippine police in 1995 and revealed the Bojinka plot to crash 11 commercial airliners into the Pacific Ocean. (Another stage of this operation was the assassination of Pope John Paul II by a terrorist masquerading as a priest). The Wikipedia entry describes the "tactical interrogation" of Hakim Murad in disturbing detail.

But it is, in fact, very likely that, under some circumstances, with some detainees, torture does produce, in the parlance of the trade, "actionable intelligence." Torture to produce a confession ("Yes, I am a terrorist") almost certainly is useless; at some point of pain, many people would confess to anything. But torture to elicit specific information (Who told you to do this? Where did the meeting take place? Who else is in your cell? What are they planning to blow up tomorrow?) sometimes will do—clearly, has done—the job. If it hasn't, many times over the centuries, then why do so many regimes engage in it? Some no doubt do it for the kicks, but they're not all purely sadists.

From a purely pragmatic standpoint, one could affirm that techniques classified as torture have worked and could make the case for their future use. After all, countless lives were undoubtedly saved as a result.

But as much as the legislation and use of torture would be supported by a utilitarian ethic, it is far from being justified by a Catholic one. Sympathetic as I am to the "Coalition for Fog's" criticisms of Shea's stylistic approach and wrongful characterization of those who disagree with him as "pro-torture," this is one point that he has hammered home -- and is right in so doing. Which brings us, then, to . . .

The Military Commissions Act of 2006

This past week, the Bush Administration sought formal Congressial support for contining CIA interrogations of detainees using what President Bush himself has dubbed "an alternative set of [interrogation] procedures" -- or, what Jonathan Rasch in The Right Approach To Rough Treatment (National Journal Sept. 22, 2006) describes as "rough or humiliating interrogation practices that exceed what is allowed under strict interpretations of the Geneva Conventions but that stop short of torture as conventionally defined."

How did that come about, giving the president what he wanted while still addressing McCain/Graham/Warner’s concerns? The key to the deal was the decision to have Congress define, in U.S. law, what are called “grave breaches” of the Geneva Convention. “We recognized that the president has the authority to interpret treaties,” says the source aligned with McCain/Graham/Warner, “but Congress now has the authority to define ‘grave breaches.’” In doing so, the negotiators enumerated nine offenses that everyone agreed constituted a grave breach of the treaty: torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or maiming, rape, causing serious bodily injury, and sexual assault or abuse, and taking hostages.

Some are quite clear. Rape is rape, and murder is murder. But what does “cruel or inhuman” treatment mean?

There was a lot — a lot — of negotiation about that. For example, the two sides haggled over the meaning of “severe mental pain” versus “serious mental pain.” The senators maintained that “serious” was the more serious term, and they won. What that will mean in practice is not entirely clear, which is probably what both sides intended.

But what is clear is that, after defining grave breaches, Congress gave the administration significant leeway to define non-grave breaches of the Geneva Conventions

. “Grave breaches are crimes,” the source says. “Non-grave breaches are something else….We are going to spell out grave breaches, and then it is up to the administration to come up with sanctions for violations that are less than grave breaches.”

That could include many, if not most, of the techniques that the administration has used in the CIA interrogation program. For example, both sides appear to believe that the agreement permits the CIA to continue to use sleep deprivation, cold rooms, and other such techniques. On the other hand, the status of the most notorious of those techniques, waterboarding, is not quite clear. When a reporter asked Hadley whether waterboarding constituted a grave breach under the new agreement, he answered, “We are not going to get into discussions of particular techniques.” A few seconds later, he added, “for purposes of complying with our international obligations under international law, that’s something that the president will clarify by executive order.”

For purposes of debate -- which I expect will ensue in the comments -- here is the final form of Military Commissions Act of 2006, passed by the House and the Senate, and which received the President's signature.

Other commentators, like Rasch, have embraced the utilitarian elements of the deal with a note of caution, recommending for the purposes of "keeping everyone honest":

. . . Every so often, the government would report to the public on how many people it roughed up over a given period, in what fashion, and why. Even with sensitive particulars redacted, a general description would force politicians to confront the public. More important, it would force the public to confront its conscience.

Coercive interrogation is a form of deliberate abuse that treats human beings not as ends in themselves but as means to an end. For a democracy founded on the promise of equal and unalienable human rights, there is no graver compromise. If the country needs to make this compromise -- as I and, apparently, most Americans think it does -- it needs to look its behavior squarely in the eye.

But is this a compromise that we -- as Catholics -- can accept?

Reactions by the Catholic blogosphere to the MCA and the practice of "aggressive interrogation" techniques are mixed:

The Anchoress: "I can only be honest and say I can see both sides of the thing. I’m not thrilled about it, but I think sometimes we walk blind and have to kiss it up to God and pray for the best, trusting that what we get wrong, in good faith, He will make right. . . . And may God have mercy on us all."

Update Mark Shea's written a lot on this topic, but today's post -- Thinking about Sin and Law vs. VirtueCatholic & Enjoying It October 3, 2006 -- is probably the best expression of where he's coming from and his fundamental concern.

"Pounding the Table", by Tom KcKenna. Seeking Justice Sept. 28, 2006. Tom McKenna offers his own thoughts on the "Shea vs. Coalition for Fog" debate, including what I think is a perfectly legit observation about the self-referentiality and lack of Thomistic precision in Gaudium et Spes' brief condemnation of torture (No. 27). and of the Catechism (section #2297):

. . . by its plain language, [The Catechism] is directed at the motivation of the conduct, not the content of the conduct. Hence it rejects torture intended to produce confessions, punish the guilty, etc. But the methods we use against our enemies (which again, are not "torture" under civil law) are not engaged in to induce confessions. We use these methods to secure actionable intelligence about our enemies. What Lyndie England did might arguably fall under this definition, since she was motivated by hatred or some other illegitimate motive. What a trained interrogator might uncover through controlled, judicious use of such methods is clearly not encompassed by this definition.

I agree with McKenna's criticism of Gaudium et Spes but find his appraisal of the Catechism less persuasive, in that I think the latter's condemnation of those acts specifically understood to be torture would apply regardless of whether the objective sought was a "confession" or "actionable intelligence." Nevertheless, McKenna is correct in locating the present dispute in those controversial acts which are not deemed to be "torture" by civil law.

Toying with Evil, by Amy Welborn. Amy links to this article by Mark Shea in the March 2005 article of Crisis magazine. The exchanges in her combox are on the whole fruitful reading, especially some back-and-forth btw/ Patrick Sweeney (Extreme Catholic) and Shea on the questionable historical record of various popes in condoning activities which we would judge today to be torture.

For the record, I join Rich Leonardi and others who categorically reject "waterboarding." On one hand, I've read FrontPageMag's The Case for Waterboarding (the author reveals its utilitarian premises with the inquiry: "Are a few moments of a terrorist’s discomfort more important than the lives of the innocents he seeks to destroy?").

I am also aware that, according to one military blogger (WSJ tortures logic with editorial Sept. 26, 2006), waterboarding is visited upon members of our very own Special Forces and Navy during the Survival, Evasion, Resistance, and Escape (SERE). But the latter argument can easily be turned upon itself: does training our troops to endures such practices (with the expectation that they would be subjected to them by the enemy) legitimize our use of them?

But I suspect that, with very few exceptions, those weighing in on this debate oppose the practice of waterboarding (something we appear to have lifted from the Khymer Rouge).

The question remains: is every measure of "alternative" or "aggressive interrogation" procedures advocated by the Bush administration in dealing with particularly resistant terrorist-suspects to be condemned outright?

Are ZippyCatholic and Mark Shea correct, in that any moral deliberation as to their applicability -- and consequent attempts to codify and regulate their use by interrogators -- simply an engagement in "consequentialism"?

Is the very usage of "alternative interrogation techniques" simply a euphemism for "torture"?

To my knowlege, both refer to the Army Field Manual's codification of inhumane treatment of prisoners:

Army regs have defined inhumane treatment for ever so long. Nothing has changed in human nature that requires redefinition of inhumane treatment. If it's not broken, don't fix it. And if it was inhumane and therefore intrinsically immoral on 9/10/01, it still is.

I have not touched on this topic on this blog at any great length until now, in part because of my personal ignorance, in part because I did not want to venture anything without having read as much as I could obtain (from the 'net, although a visit to the public library is in order). I hope what little I've offered here contributes to a reasonably informed discussion.

Following is a roundup of what I've found to be helpful resources on this subject.

What is torture? Euphemisms like "stress position" cover a wide range of practices, from the merely uncomfortable to the wickedly cruel and painful. At Slate, we have wrestled with the definitions of abuse and torture and how best to present these morally and legally complicated terms. The taxonomy follows the legal maxim of res ipsa loquiturlet the thing speak for itself. The tactics below are listed in order from least to most severe.

Torture as defined in international agreements to which the U.S. is party—outrages against human dignity, humiliation, degradation, mutilation, the threat of death—is never morally permissible. Admittedly, a measure of coercion, both physical and mental, is inevitably involved in most interrogation. The very fact of being in custody and under threat of punishment is a form of coercion. The task is to draw as bright a line as possible between such coercion and torture, and to forbid the latter absolutely. The uncompromisable principle is that it is always wrong to do evil in order that good may result. This principle is taught in numerous foundational texts of our civilization and is magisterially elaborated in the 1993 encyclical of John Paul II, Veritatis Splendor. We cannot ask God’s blessing upon a course of action that entails the deliberate doing of evil. When something like Abu Ghraib happens, the appropriate response of patriotic Americans is one of deep sorrow, clear condemnation, and a firm resolution that it not happen again.

Finally, in Speaking about the Unspeakable (First Things 151 March 2005), Neuhaus, "struck by the paucity of serious discussions by Christian moral theologians and ethicists" about torture, calls for Jewish and Christian theologians to remedy the issue:

The instance of hijacked planes is relatively rare; the instance of torture is common, and, it would seem, becoming more common. Christian ethicists have in recent years moved away from “quandary ethics” to “virtue ethics,” and that is in many ways a good thing. But quandaries persist. Casuistry has a bad reputation, but the careful study of cases and the moral rules that apply to them is inevitably part of serious moral reflection. I, too, earnestly wish that we could not talk about torture. But the reality and the discussion of the reality will not go away. One cannot help but think that the discussion would benefit from the contributions of Christian and Jewish thinkers informed by the wisdom of biblical sources and their own traditions.

The Torture Question PBS Frontline Report. "In fighting the war on terror, how far should the United States go to protect itself?"

Two prominent cases discussed in the "torture debate" are the interrogations of Abu Zubaydah, the first Osama bin Laden henchman captured by the United States after 9/11, and Khalid Shaikh Mohammed, dubbed "the principal architect of the 9/11 attacks" by the 9/11 Commission and responsible for a good number of terrorist plots including the 1993 World Trade Center bombing, the Operation Bojinka plot, an aborted 2002 attack on Los Angeles' U.S. Bank Tower, the Bali nightclub bombings, the failed bombing of American Airlines Flight 63, and the murder of Daniel Pearl. [Source: Wikipedia entry].

By contrast, in How to Interrogate TerroristsCity Journal Winter 2005, Heather MacDonald dispels some false arguments of those associating the abuse of prisoners at Abu Ghraib with the actual interrogation techniques employed by military interrogators in Afghanistan and Gitmo:

It is worth scrutinizing the final 24 techniques Rumsfeld approved for terrorists at Gitmo in April 2003, since these are the techniques that the media presents as the source of “torture” at Abu Ghraib. The torture narrative holds that illegal methods used at Guantánamo migrated to Iraq and resulted in the abuse of prisoners there.

Long ago, German philosopher Immanuel Kant wrote about the perennial human tendency to find exceptions to binding moral rules when those obligations bind just a bit too tightly on us. . . .

I believe that this is the best explanation for what is happening on the issue of torture in our nation. Our current crisis represents our succumbing to the temptation to waive moral rules that we have every reason to know are applicable to us. They are part of international law, military law, and moral law. We would certainly not want our troops or our “detainees” or ourselves to be tortured were the shoe on the other foot. We know that torture is wrong, but just not now, not in our exceptional case, not in this global war on terror. We are tempted to follow the logic of a Time magazine article when it says, “In the war on terrorism, the personal dignity of a fanatic trained for mass murder may be an inevitable casualty.”

The United States can win this global war without employing torture. That we will not resort to what comes so naturally to Islamic terrorists also defines the nobility of our cause, reminding us that we need not and will not become anything like our enemies.

We Have Ways... Contributing editor John Derbyshire, on torture. National Review Nov. 16, 2001.

Inasmuch as discussion on this topic usually references either Abu Ghraib or the treatment of detainees at Camp Guantanamo, it might be worthwhile to look at what actually happens. In Soft Cell: The reality of Guantanamo, by Rich Lowry. National Review Sept. 28, 2006:

. . . The facility here has been used, of course, to smear the United States. The press still uses photos from Camp X-Ray — the Spartan, temporary facility used for just four months in 2002 to house detainees — in its Gitmo stories, although it has been overgrown with weeds for years and replaced by modern facilities. The detainees are aware of the power of the media, so they time their suicide attempts and disturbances for maximum attention. The principle among the guards is to respond to any provocation with minimal possible force to avoid giving critics any new propaganda. . . .

A common protest concerning the MCA 2006 is that, in the words of Senator Arlen Specter, the bill "take[s] our civilization back 900 years," to before the adoption of the writ of habeas corpus in medieval England" (Habeas Corpus R.I.P.Andrew Sullivan Sept. 28, 2006. Two articles in the conservative journals this week have challenged that interpretation:

The Constitution, Writ or Wrong, by Adam J. White. Weekly Standard October 5, 2006: "Of the MCA's various controversial provisions, the most mischaracterized was its amendment of 28 U.S.C. 2241, limiting the right of detainees to petition the federal courts for the "writ of habeas corpus"--i.e., to challenge the legality of their detention."

FAQ about the Military Commissions Act of 2006 Center for Victims of Torture. The Minneapolis-based Center for the Victims of Torture, confidently express the hope that "interrogation practices previously used by the U.S., including waterboarding, prolonged sleep deprivation, induced hypothermia, stress positions, shaking and sensory deprivation and overload, are prohibited by the MCA" -- an assertion largely "supported by Sen. John McCain’s statement on the floor of the Senate." Other sources I've cited do not share this optimism.

Army Publishes New Intelligence Manual Field Manual (FM) 2-22.3, “Human Intelligence Collector Operations” replaces Field Manual 34-52, published in 1992. The new Army Field Manual 2-22.3 is broader in scope than the old field manual, but covers interrogation in detail. Other activities covered by the new field manual include screening, debriefing, liaison, and military source operations. [Here is a link to the current manual [.pdf format].

According to this report, "The new manual, called "Human Intelligence Collector Operations," applies to all the armed services, not just the Army. It doesn't cover the CIA" -- and it is the CIA which is the subject of the Military Commissions Act of 2006.

Note: I make no personal endorsement other than to recognize that these are popularly cited works on the subject -- as law and just war theory blogger Kenneth Anderson reminds us, in reading on this subject be cautious about

institutions with institutional interests - Human Rights Watch and NYU's Center on Law and Security - not even semi-neutral edited collections. Their positions are important ones, of course, but they are not exactly the best positioned to present a fair range of views, and they don't.